Top judge resigns over 'politics'

KwaZulu-Natal judge president Chiman Patel will leave his post on December 31, ending a three-year tenure that – despite improvements in the division’s efficiency – has been plagued by race conflict and an apparent long-running unhappiness in the political establishment about his appointment.

On Thursday, crimen injuria (criminal defamation) charges against Patel were withdrawn in the Durban magistrate’s court.

Patel’s lawyer, advocate Marumo Moerane SC, told the court he wished to place on record his “disgust and utter condemnation of the decision to institute these criminal proceedings against” the judge president.

Moerane said the decision to prosecute was “difficult to fathom … It could never have been based on an honest intention to secure a conviction … [and] must have been borne out of an improper motive to humiliate the judge president and treat him like a common criminal.”

The Mail & Guardian understands that the matter, together with an apparently uneasy relationship with the province’s political establishment and discontent within the division at Patel’s attempts to reform it, had contributed to his declining health and his subsequent request to retire.

Patel wrote to Justice Minister Michael Masutha in August this year, informing him of his wish to be discharged from active service. The justice department said Patel will be leaving with full benefits.

The spokesperson for the office of the chief justice, Lulama Luti, confirmed that Patel will vacate his post at the end of the year and that it will be advertised by the Judicial Service Commission (JSC) in time to interview prospective candidates when it sits again in April next year.

Transformation
The M&G understands from a well-placed source that Patel would have preferred to continue as judge president until he turned 70 so as to see through plans he had put in place, including the construction of a new high court building in Pietermaritzburg and the continuing transformation of the province’s Bench.

The crimen injuria charge, by high court stationery clerk Lindiwe Nxele, emerged in October 2013 and led to Patel being charged almost a year later, with the judge making his first court appearance in November.

Nxele alleged that Patel had called her a “nonsense, trash, rubbish and useless person”.

Patel has strenuously denied the allegations, stating that he had merely reprimanded the clerk for not doing her job.
The M&G understands that the question of whether to continue with the prosecution had been escalated to the office of the national director of public prosecutions, which ensured that the charges were withdrawn this week.

The matter has, however, laid bare simmering racial tensions in the province and raised questions about the independence of the National Prosecuting Authority (NPA) and its provincial director of public prosecutions, the controversial Moipone Noko – especially as there have been long-held concerns about apparent attempts to load the division with judges sympathetic to President Jacob Zuma.

It has been suggested to the M&G that if Zuma’s fraud and corruption charges were to be reinstated the case would go back to the KwaZulu-Natal division, where a sympathetic judge president may be amenable in appointing an equally sympathetic adjudicator.

A member of the province’s legal fraternity questioned why Noko had allowed the cloud to hang over the judge president’s office for over a year before Thursday’s about-turn: “This was a very small docket. Why did it take so long for the director of public prosecutions to decide to charge the judge president?

“One should be mindful of what a humiliating exercise it is for him, especially to also have these allegations undermining the integrity of the office for so long,” said the lawyer.

“The stress on the judge president has been evident and he has withdrawn from official functions that he is not compelled to officiate over in recent months,” said the source.

Impartiality questioned
Noko’s impartiality has been questioned in the province and another source noted that, when she replaced Simphiwe Mlotshwa in August 2012, Noko had taken “a mere two weeks following her appointment” to drop fraud and corruption charges against ANC provincial ministers Mike Mabuyakhulu and Peggy Nkonyeni in the multimillion-rand “Amigos” case. Yet, the source pointed out, Noko had allowed a decision on “a docket of 12 pages” to drag on.

In the Amigos matter, several high-ranking ANC provincial officials were implicated in a dodgy deal to acquire water purification machines and oxygen generators for the provincial health department from Uruguayan businessperson Gaston Savoi’s Intaka company.

People facing crimen injuria charges can pay a R250 admission of guilt fine, but the M&G understands that Patel was keen for the matter to proceed so that Nxele’s version could be tested under cross-examination. He had enlisted two high-ranking advocates, Moerane and Pingla Hemraj, to represent him.

The matter has raised the issue of an apparent wave of “anti-Indian” sentiment within KwaZulu-Natal, including in its political establishment and legal fraternity. Several legal sources in the province suggested that both the ANC leadership and traditional leaders would have preferred that a Zulu judge, rather than Patel, head the division.

Patel became the country’s first judge president of Indian origin when he was appointed in 2011 – ahead of the political establishment’s preferred candidate at the time, Judge Isaac Madondo.

Madondo, who officiated at King Goodwill Zwelithini’s marriage to his sixth wife earlier this year, had raised the ire of some judicial service commissioners by suggesting that Indians “were oppressed, but not in the same way” as Zulus during apartheid and would be ill-equipped to lead the division.

Imbalances
Responding to a question by Inkatha Freedom Party JSC member Koos van der Merwe whether the time was not ripe to appoint an Indian as judge president, Madondo said: “I don’t think so. We still have things to address – imbalances, all kinds of things, which need more insight, which a person who is not [a black] African cannot be privy to.”

The race storm started brewing prior to the 2011 interviews when, in an unprecedented move, the Pietermaritzburg branch of the Black Lawyers’ Association submitted an unsigned letter to the JSC alleging that Patel, who had the support of 14 judges in the division, was a racist and an “anti-black African”.

At the time, commission spokesperson advocate Dumisa Ntsebeza SC told the M&G that the letter was an “aberration” that “should not have found its way to the JSC”, as it was unsigned and the association appeared to have “departed from the well-trusted procedure of commenting as a body and not branches”.

According to sources in the legal fraternity, poorly performing KwaZulu-Natal judges, some of whom were crying off sick with “primary school excuses” and those “ill-suited to the task”, found it difficult to deal with Patel’s “cracking the whip” to ensure greater efficiency in the division – which added to the judge president’s frustration.

Advocate Rajesh Choudree, who chairs Advocates for Transformation and the Society of Advocates of KwaZulu-Natal, said it is a “great pity” that the matter has dragged on for so long and that Patel has resigned.

“He will leave behind a well-oiled case management system, which has made the courts more efficient and has set in motion initiatives that are transforming the Bench in the province,” said Choudree.

“But the emotional stress on the judge president was clear for all to see recently.”

NPA spokesperson Nathi Mncube said the charge was withdrawn following “a thorough consultation with the witnesses for the state [when] it became clear that there were no prospects of a successful prosecution”.

He said the prosecuting authority dismissed “with contempt” any suggestion that Noko or any other official had “acted with malice or permitted outside influence when the decision to charge Mr Patel was taken”. – Additional reporting by Fatima Asmal

Niren Tolsi

Niren Tolsi is a freelance journalist.His areas of interest include social justice; citizen mobilisation and state violence; protest; the constitution and the constitutional court and football. Read more from Niren Tolsi